Constitutional Law:
Whether it is a violation of the Fourteenth Amendment for a state to use the ballot initiative process to ban marriage between same-sex couples.

In 2008 the State of California passed an amendment to its constitution, Proposition 8, that stated only marriage between a man and a woman is valid or recognized in California. Proposition 8’s opponents brought in an action seeking a writ from California’s highest state court preventing the state from enforcing Proposition 8’s provisions. After state officials refused to defend Proposition 8’s validity, the court granted permission to intervene to the five California residents responsible for Proposition 8 (Petitioners). The court upheld Proposition 8, but refused to invalidate the 18,000-plus same-sex marriage licenses that had already been issued. Strauss v. Horton, 207 P.3d 48 (2009).

In response, Respondents filed a 42 U.S.C. § 1983 action in district court claiming that Proposition 8 violated the Due Process and Equal Protection clauses of the Fourteenth Amendment and seeking an injunction against its enforcement. The district court agreed with Respondents and granted the injunction, and the Court of Appeals for the Ninth Circuit affirmed. Citing Romer v Evans, the Court of Appeals for the Ninth Circuit held that Proposition 8 violated the Fourteenth Amendment of the United States Constitution because there was no legitimate interest the state could have that would justify treating gays and lesbians differently. The Supreme Court granted certiorari to decide whether Proposition 8 violates Respondents’ Due Process or equal protection rights. The Supreme Court has also directed the parties to brief and argue whether Petitioners have standing under Article III, §2 of the Constitution in this case.

Petitioners argue that the Court of Appeals misapplied Romer because the People of California “have reserved to themselves to amend their Constitution through the initiative process when they conclude that a judicial interpretation or application of a preexisting constitutional provision should be changed." Petitioners also argue that Proposition 8 did not impose or deny rights to a certain group but simply restored the traditional definition of marriage.